Is it a crime to offend someone under the Racial Discrimination Act?

Alan Tudge says under the Racial Discrimination Act it can be considered a crime to offend someone. ABC Fact Check finds his claim is incorrect.

AAP: Julian Smith

Attorney-General George Brandis recently released draft amendments to the Racial Discrimination Act. The proposed changes continue to attract robust public debate, in particular those relating to section 18C.

Section 18C deals with the prohibition of "offensive behaviour", and includes offending, insulting, humiliating and intimidating others on the basis of race, colour or national or ethnic origin.

"When you look at the Act itself... it says that if you offend someone - and it's a subjective measure so if you're personally offended - even though many people may not have thought it was offensive language, then it can be considered a crime," Mr Tudge said.

The claim: Alan Tudge says under the Racial Discrimination Act it can be considered a crime to offend someone.

The verdict: Mr Tudge is incorrect. The conduct described in section 18C of the Act is not criminal.

"It comes down to: What type of language do you get the police involved and the courts involved with, what type of language should be criminal; versus what type of language is nevertheless unacceptable but should be just dealt with by saying it's unacceptable, pointing it out in no uncertain terms, and I think that sometimes just doing that is a better way to deal with it."

Fact Check investigates whether it is a crime to offend someone under the current Racial Discrimination Act.

The Act as it stands

Section 18C of the Racial Discrimination Act says:

It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

The section says it is "unlawful" for a person to act in the above ways, but is unlawful the same as criminal?

The difference between an "unlawful" and a "criminal" act

The director of law reform and social justice at the Australian National University, Professor Simon Rice, says the term "unlawful" does not necessarily mean "criminal". He says that while unlawful acts are prohibited by law, they are not a criminal offence under section 18C, which is in Part IIA of the Act.

"There is no offence under Part IIA of the Racial Discrimination Act," Professor Rice said. "There are no criminal sanctions attached to the conduct the Act is targeting. Mr Tudge is fundamentally wrong. Nothing in the Act makes any form of vilification a criminal offence. There is no possibility of police involvement."

He said Mr Tudge would have been correct if he had said "unlawful" and had not referred to police involvement.

Mr Tudge is fundamentally wrong. Nothing in the Act makes any form of vilification a criminal offence. There is no possibility of police involvement.

Professor Simon Rice

Professor Rice's interpretation is reflected in the Act itself. Section 26, which is in Part IV of the Act, says:

"Except as expressly provided by this Part, nothing in this Act makes it an offence to do an act or agree with another person to do an act that is unlawful by reason of a provision of Part II or Part IIA."

This is echoed in a note attached to section 18C which says an unlawful act is "not necessarily" a criminal offence. "Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence," the note says.

Part IV does outline some criminal offences, but they do not deal with offending someone on the basis of race. Rather, the offences in Part IV deal with conduct such as intimidating or coercing someone, or an employer discriminating against an employee, because they have made a complaint under the Act, or taken other actions associated with the Act - such as attending a conference.

These actions are described as "offences" in Part IV, and carry penalty units and imprisonment guidelines accordingly.

Expanding on the difference between the terms "offence" and "unlawful", Professor Rice told Fact Check:

"Unlawful conduct isnot illegal conduct.'Unlawful' is conduct prohibited by law, an 'offence' is also conduct prohibited by law but at a more serious or higher level. There is a fundamental procedural difference – unlawful acts are pursued by the person or entity who is aggrieved, and illegal acts are pursued by the police in order to punish the perpetrator. For unlawful conduct the harmed person seeks a personal remedy like compensation; for illegal conduct the perpetrator is punished," he said.

Associate Professor David Rolph from the Faculty of Law at the University of Sydney says section 18C imposes a civil liability, so if you make a complaint under the Act there is no criminal process and therefore the police are not involved.

He says under section 18C "it is not a crime to offend someone".

"Section 18C creates a form of civil liability. Section 26 makes it clear that offending someone under section 18C is not a criminal offence."

Breaching the Act

A well-known example of a "harmed person seeking personal remedy" occurred in the Federal Court in 2011. Justice Mordecai Bromberg found two articles written by News Corp columnist Andrew Bolt were "... reasonably likely to offend, insult, humiliate or intimidate Aboriginal persons of mixed descent who have a fairer, rather than darker skin, and who by a combination of descent, self-identification and communal recognition are, and are recognised as Aboriginal persons ..."

Justice Bromberg concluded that Bolt and The Herald and Weekly Times contravened section 18C of the Racial Discrimination Act by publishing the articles, and the Herald Sunwas ordered to publish corrective notices and pay the claimant's costs.

But this does not mean that Bolt committed a crime.

Criminal consequences

A person's actions after a breach of the Act can result in a criminal record. This occurred in the case of Jeremy Jones v Gerald Fredrick Toben, in which the Executive Council of Australian Jewry complained that the Adelaide Institute, represented by Dr Toben, had published "malicious anti-Jewish propaganda" on its website. In 2002 Justice Catherine Branson found that Dr Toben had contravened section 18C and ordered him to remove the content from the website and pay the applicant's costs.

Dr Toben refused to take down the offending material and so in 2009 he was found to be in contempt of court. In his judgment, Justice Bruce Lander emphasised that Dr Toben's behaviour was "conduct that amounts to criminal contempt". As a result, Dr Toben was ordered to serve three months in prison and pay the applicant's costs.

This case demonstrates the binding nature of the court's orders in respect of breaches of the Racial Discrimination Act. However Dr Toben's original conduct, which contravened the Act itself, was not criminal.

Personal offence

Mr Tudge said during his interview with News Breakfast that according to the Act, offending someone is "a subjective measure". He said: "if you're personally offended - even though many people may not have thought it was offensive language, then it can be considered a crime".

According to the Act the test is whether the conduct "is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people".

In judgments relating to section 18C, courts have sought to define what is meant by that sentence, and in particular the term "reasonably likely".

"Whether conduct is reasonably likely to offend, insult, humiliate or intimidate a group of people calls for an objective assessment of the likely reaction of those people. I have concluded that the assessment is to be made by reference to an ordinary and reasonable member of the group of people concerned and the values and circumstances of those people."

Justice Drummond went on: "The question so far as s 18C(1)(a) is concerned is not: how did the act affect the particular complainant? But rather would the act, in all the circumstances in which it was done, be likely to offend, insult, humiliate or intimidate a person or a group of people of a particular racial, national or ethnic group?"

Mr Tudge's assertion that the Act sets up a "subjective measure" based on whether an individual is "personally offended" is not supported by the interpretation of the Act by the judges mentioned above. The cases cited above show that the courts consider that the Act is not measured by the complainant's personal experience, but by an objective test of a person in the particular racial, national or ethnic group concerned. It is whether a reasonable person from this group, not a particular person, is offended.

The Government's proposed changes

The Government's proposed changes to the Racial Discrimination Act remove references to offending, insulting and humiliating from section 18C.

In their place will be the following:

1. It is unlawful for a person to do an act, otherwise than in private, if:

a. the act is reasonably likely:

i. to vilify another person or a group of persons; or

ii.to intimidate another person or a group of persons, and

the act is done because of the race, colour or national or ethnic origin of that person or that group of persons.

Like the current Act, under the proposed changes the conduct is not criminal.

Reviewed by the legal panel

This piece has been reviewed by ABC Fact Check's legal advisory panel.

The verdict

Mr Tudge was mistaken to say that under the current Racial Discrimination Act "... if you're personally offended, even though many people may not have thought it was offensive language, then it can be considered a crime".

The conduct described in section 18C is not criminal, and offence is not determined by personal experience.